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Marquez v. Providence Memorial Hospital Tenet Healthcare Corp.9/27/2001
tual assertions of the movant's affidavits are not controverted, the trial court must accept them as true. See Old Republic Insurance Company v. Scott, 873 S.W.2d 381, 382 (Tex. 1994). In such a case, the movant satisfies his burden if the affidavits set forth facts that, if true, establish the Craddock elements, including a showing that the failure to appear was not intentional or the product of conscious indifference. Id.; Strackbein v. Prewit, 671 S.W.2d 37, 38-39 (Tex. 1984).
Rule 165a(3), which governs reinstatement of a case dismissed for want of prosecution, requires the movant to set forth the grounds for reinstatement in a verified motion. See Tex.R.Civ.P. 165a(3). Similar to the language used in Section 13.01(g), the trial court must reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained. Id.
Providence, Tenet, and Dr. Vigil seek to graft this verification requirement upon Section 13.01(g) even though such a requirement is not found in the statute. While it is logical to interpret the substantive elements of Section 13.01(g) so that they are consistent with Rule 165a(3) and Craddock, a motion for extension of time is procedurally distinct from a motion for new trial. In the latter case, judgment has already been granted in favor of the opponent, and thus, there are different policy considerations. As the Supreme Court discussed in Ivy, it imposed the burden on the defendant to attach affidavits or other evidence showing a meritorious defense so that cases would not be reopened needlessly. See Ivy, 407 S.W.2d at 214. Obviously, the verification requirement grows out of the strong policy concerns which favor finality of judgments. Those concerns are not present in the context of a Section 13.01(g) motion. Further, we find no evidence of an intent on the part of the Legislature to impose any of the procedural requirements contained in Rule 165a(3), including verification. If this had been the Legislature's intent, it could have easily included this requirement in the statute. Therefore, we hold that a motion under Section 13.01(g) need not be verified in order to be considered timely under the statute. It is by far the better practice, but it is not procedurally required. Marquez' unverified motion for grace period filed on June 23, 1999 was timely, and the trial court erred in concluding otherwise.
Did Marquez Sustain Her Burden under Section 13.01(g)?
Marquez bore the burden of establishing that her failure to comply with the deadline for filing Dr. Huffman's expert report was not intentional or the result of conscious indifference but was the result of an accident or mistake. See Schorp v. Baptist Memorial Health System, 5 S.W.3d 727, 732 (Tex.App.--San Antonio 1999, no pet.)(stating that burden is on party seeking relief to show evidence of accident or mistake to demonstrate that he did not act intentionally or with conscious indifference). On appeal, Marquez contends that Dr. Huffman's expert report was received in her attorneys' office on November 10, 1998, but it was inadvertently placed in the office file by legal staff rather than being filed with the clerk and forwarded to opposing counsel. While there is evidence which partially supports this assertion, it is also directly contradicted by the testimony of counsel.
The expert report of Dr. Huffman is dated November 10, 1998, and it is addressed to Marquez's attorneys, Robert Hedicke and Victor Poulos. The report was not filed with the district clerk until February 3, 1999. In the motions for gra
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